Kyle Marsh and Civil Aviation Safety Authority
[2015] AATA 308
•8 May 2015
[2015] AATA 308
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/4027
Re
Kyle Marsh
APPLICANT
And
Civil Aviation Safety Authority
RESPONDENT
DECISION
Tribunal Deputy President PE Hack SC
Date 8 May 2015 Place Brisbane 1. The respondent’s decision of 8 August 2013, made in reliance on reg 298A(4) of the Civil Aviation Regulations 1988 (Cth), is affirmed.
2. The respondent’s decision of 8 August 2013, made in reliance on reg 269(1) of the Civil Aviation Regulations 1988 (Cth), is set aside.
..................[Sgd]......................................................
Deputy President PE Hack SC
CATCHWORDS
CIVIL AVIATION – cheating by examination candidates – whether applicant gave another person information about questions contained in examination paper being information that might give anyone unfair advantage in examination – decision under review affirmed
CIVIL AVIATION – suspension of licence – whether applicant is not fit and proper person to have responsibilities and exercise and perform functions and duties of holder of licence – decision under review set aside
LEGISLATION
Civil Aviation Regulations 1988 (Cth), regs 269(1)(d), 298A(1)(c), 298A(1)(d), 298A(1)(e), 298A(1)(f)(iii)
CASES
Marsh & Civil Aviation Safety Authority [2013] AATA 729
Civil Aviation Safety Authority v Marsh [2014] FCA 1253
REASONS FOR DECISION
Deputy President PE Hack SC
8 May 2015
Introduction
On 10 October 2013 I set aside two decisions of the respondent, the Civil Aviation Safety Authority, concerning the applicant, Mr Kyle Marsh.[1] The decisions made by the Authority were made on 8 August 2013 and were,
(a)a decision that Mr Marsh had contravened reg 298A(1)(c) of the Civil Aviation Regulations 1988 (Cth); and,
(b)a decision, made in reliance on reg 269(1) of the Civil Aviation Regulations, to suspend Mr Marsh’s various aviation licences for a period of six months.
[1]Re Marsh & Civil Aviation Safety Authority [2013] AATA 729.
Subsequently, on the Authority’s appeal, the Federal Court decided that I had erred in my interpretation of reg 298A and that I had not dealt with an argument raised by the Authority.[2] The matter has been remitted for rehearing in accordance with the law.
[2]Civil Aviation Safety Authority v Marsh [2014] FCA 1253.
The parties are agreed that the matter will be determined on the basis of the existing evidence, supplemented by further written submissions lodged on behalf of Mr Marsh and the Authority.
Factual background
In my earlier decision I set out the factual background in this way:
[1]The applicant, Mr Kyle Marsh, is a commercial pilot. He wishes to obtain an Air Transport Pilot Licence (ATPL), the highest grade of pilot’s licence available, a qualification recognised by all airlines and by aviation regulators worldwide. To that end on 12 October 2011 he undertook a flight planning theory examination conducted under the auspices of the respondent, the Civil Aviation Safety Authority (CASA). He passed that examination.
[2]In September 2012 CASA came into possession of information that suggested that Mr Marsh may have cheated in the October 2011 examination and that in July 2012 he may have provided information to another person (who I shall call N) that might have allowed others to cheat in a similar manner. On 8 August 2013, following an investigation, CASA, by a delegate, decided that he had assisted another person to cheat and decided to suspend his various licences for a period of six months.
…
[8]The theory part of the ATPL examination comprises seven parts – human factors, aerodynamics and aircraft systems, performance and loading, navigation, meteorology, flight planning and air law. The separate parts are examined separately and a candidate is permitted to take up to three years from the first examination attempt to complete all seven examinations. Once all seven have been completed successfully the candidate has completed the ATPL theory exam.
[9]The examination in issue here was the flight planning segment. The examination was designed to test a candidate’s understanding of flight planning procedures including fuel requirements, altitude capability, performance limitations, calculations of point of no return and suchlike. A candidate was required to answer 17 questions. Each question represented an area of the syllabus. Prior to the events in issue here CASA had worked out 105 possible questions designed to test flight planning. The bank of questions had not altered greatly since the last major syllabus change in April 1994. The examination was undertaken online at premises under the control of an external provider. Each candidate had access to a computer terminal. Once the candidate was logged on, the computer selected the 17 questions randomly from the bank of questions available and displayed those questions to the candidate. The examination questions had multiple choice answers, generally with four or five possible answers, and the candidate was required to select an answer with the computer’s mouse. The examination was timed through the computer terminal. It closed down, checked the answers and determined the result at the end of the permitted time. A candidate who finished before the end of the permitted time could submit the answers and obtain the result. The examination forced candidates to work under considerable pressure of time. A candidate could revisit answers at any time until the answers were submitted, either voluntarily, or through the effluxion of time. Candidates were permitted to take maps, navigation equipment and the Performance and Operating Handbook for a Boeing 727 aircraft into the examination room.
[10]It seems that at least by 2011 there were numerous documents circulating widely amongst students that provided answers to many of the possible 105 questions. That is not surprising given that CASA had used the same 105 questions for almost 20 years. The document in issue in these proceedings was apparently one such document. Someone (and it is not suggested that it was Mr Marsh) took four pages of what appear to be coded answers to questions and incorporated them into pages from the Boeing 727 Handbook permitted in the examination room in such a way as made them appear, on a superficial inspection, to be a part of that Handbook. The borders of each of the four pages are exact reproductions of the borders of pages from that Handbook but the text inside the borders reproduces the coded answers. The general format of the inserted part consists of a repetition of key factual data from a question with the answer at the end. Thus,
SY-WN FL290 .82M SY BRW 85900 TFOB@BRW 22400 70450
which appeared on one page was a reference to a question that asked about landing weight (LW) of a flight from Sydney (SY) to Wellington (WN) at 29,000 feet (FL290) and a brake release weight (BRW) of 85,900 kg. The correct answer was 70,450 kg. The four pages contained very many similar references. The evidence of Mr Gavin Secombe, CASA’s Cyber Exams Administrator, is that the answers to 33 of the possible 105 questions appear on these four pages. There is no reason to doubt that evidence.
[11]The conclusion is inescapable that the four pages were designed to be taken into an examination room and to provide an improper advantage to any candidate using them. Any such use was plainly gross and flagrant cheating.
[12]CASA first became aware of these pages in September 2012 when a whistle-blower forwarded those pages together with numerous similar pages (although the other pages were not disguised so cleverly). The whistle-blower alleged that it was “common knowledge” that candidates were using “cheat sheets” to pass the examination. The description seems entirely accurate. Subsequently the whistle-blower sent to CASA an email apparently sent by Mr Marsh to N on 7 July 2012 together with the attachment comprising the four pages. Mr Marsh accepted that he had sent the email and that the four pages with the coded answers “probably” comprised the attachment to his email to N.
[13]CASA undertook an investigation. Mr Marsh was questioned by Mr John Moore, a CASA investigator. He agreed that he had provided the coded pages to N but denied having used the pages during his examination in October 2011.
[14]By letter of 14 February 2013 CASA gave to Mr Marsh the notice required by reg 298A(1) of the Civil Aviation Regulations. That notice informed him that the author considered that there were reasonable grounds to believe that on 12 October 2011, in Maroochydore, Queensland, during a CASA Flight Planning Cyber Exam, Mr Marsh contravened sub-regulation 298A(1)(e) of the Civil Aviation Regulations. The notice went on to set out the facts and circumstances relied on. It set out the terms of reg 298A(1)(e) together with other relevant provisions of the Regulations. The notice then read,
On the basis of the facts and circumstances set out above, I consider that there are reasonable grounds to believe that your conduct on 21 March 2012 contravened sub-regulation 298A(e) [sic] of the CAR in that you:
(a)gave to another person, Mr Marsh, answers to questions and information about questions contained within the examination paper;
(b)before the examination knowingly received from another person answers to questions and information about questions contained within the examination paper.
It will be immediately apparent that there is discord between the facts in the introductory part of the notice, which asserted a belief about events during the examination in October 2011, and that in the latter part which asserted a belief about conduct in March 2012 involving the giving of answers to a Mr Marsh.
[15]In any event Mr Marsh wrote to CASA (with the assistance of his father) on 8 April 2013.
[16]Then on 17 May 2013 CASA sent a further notice to Mr Marsh. On this occasion the author, having referred to the previous notice of 14 February 2013, asserted that,
…it is open to CASA to find that [Mr Marsh] also contravened sub-regulation 298A(1)(c) of the CAR and that the delegate should also make findings to that effect under sub-regulation 298A(4) of the CAR.
The notice continued,
On the basis of the facts and circumstances set out in the previous notice, I consider that there are reasonable grounds to believe that your conduct on 7 July 2012 contravened sub-regulations 298A(1)(c) of the CAR in that you:
(a)gave to another person,[N], in the form of an email, information about questions contained in a theoretical examination paper being answers to questions and information about questions contained within that examination paper;
(b)that information was information that might give [N] an unfair advantage in the examination.
On the evidence before me N sat the examination (successfully) in March 2011.
[17]On 8 August 2013 a delegate of CASA made the decisions that are the subject of these proceedings. The decisions were as follows:
(a)in accordance with sub-regulation 298A(4) of the Civil Aviation Regulations 1988 (CAR) that I am satisfied, and I have therefore decided to make a finding, that you contravened sub-regulation 298A(1)(c) of the CAR; and
(b)in accordance with sub-regulations 269(1)(c) and (d) of the CAR, to suspend your student pilot licence, private pilot (aeroplane) licence, and commercial pilot (aeroplane) licence until six months has elapsed from the date of commencement of the suspension.
That decision was based on findings recorded as follows:
28.Pursuant to sub-regulation 298A(4) of the CAR, I am notifying you that, on the basis of the facts and circumstances set out above, I have decided that your conduct on 7 July 2012 also contravened sub-regulations [sic] 298A(1)(c) of the CAR in that you:
(i) gave to another person, [N], in the form of an email, information about questions contained in a theoretical examination paper, being answers to questions and information about questions contained within that examination paper;
(ii) that information was information that would give [N] an unfair advantage in the examination.
29.I have decided that, whilst there is a strong inference that you had access to the cheat sheet prior to sitting the Cyber Exam on 12 October 2011, I make no finding that you contravened sub-regulation 298A(1)(e) of the CAR. However, for the avoidance of any doubt, CASA maintains its position that your answers in the Cyber Exam are consistent with the compromised answers contained in the cheat sheet as illustrated at paragraph 11 above.
[18]This application was lodged in the Tribunal on 15 August 2013. The implementation of CASA’s decision to suspend Mr Marsh’s licences has been stayed by operation of law and as a consequence of an order of the Tribunal made on 27 August 2013. Hearing of the matter was expedited.
The statutory setting
Regulation 298A is headed “Cheating by examination candidates”. It provides, so far as is presently material,
(1)CASA may give written notice to a person who attempted a prescribed examination if it believes on reasonable grounds that the person has committed any of the following acts without CASA’s permission:
(a) copied any part of the examination paper;
(b) removed:
(i) any part of the examination paper; or
(ii) a copy of any part of the examination paper;
from the place where the person attempted the examination;
(c)given to another person:
(i) any part of the examination paper; or
(ii) a copy of any part of the examination paper; or
(iii)any information about the questions contained in the examination paper, being information that might give anyone an unfair advantage in the examination;
(d) before the examination—knowingly received from another person, or otherwise knowingly obtained possession of:
(i) any part of the examination paper; or
(ii)a copy of any part of the examination paper; or
(iii) any information about the questions contained in the examination paper, being information that might give the person an unfair advantage in the examination;
(e) before or during the examination—knowingly received from another person, or otherwise knowingly obtained possession of:
(i) any part of the model answer; or
(ii) a copy of any part of the model answer; or
(iii) any information about the content of the model answer;
(f) during the examination:
(i) helped another person to complete any part of the examination; or
(ii) received help from another person to complete any part of the examination; or
(iii) used any material or aid that CASA does not permit to be used; or
(iv) read the examination work of another person attempting the examination;
(g) caused or assisted the commission of, or attempted, any act referred to in paragraph (a), (b), (c), (d), (e) or (f).
Note: For definitions of expressions used in this subregulation see subregulation (8).
(2)CASA must set out in a notice under subregulation (1):
(a)the act which CASA believes the person has committed; and
(b) the grounds for the belief.
(3)If CASA notifies a person under subregulation (1), the person may, within the period of 14 days after the day on which the person received the notice, make reasonable representations to CASA explaining why the person believes that he or she has not committed the act mentioned in the notice.
(4)If:
(a) CASA notifies a person under subregulation (1); and
(b) the period of 14 days after the day on which the person received the notice has ended; and
(c) after taking into account any representations, CASA is satisfied that the person has committed the act mentioned in the notice;
CASA must notify the person of its decision.
Note: Regulation 297A provides that a decision by CASA that it is satisfied as mentioned in subregulation 298A(4) is reviewable by the Administrative Appeals Tribunal.
(5)If CASA notifies a person under subregulation (4), the person:
(a) is taken not to have passed the examination; and
(b)is not permitted to attempt any prescribed examination for a period of one year from the day of the first-mentioned examination.
The regulation thus provides for a five stage process, namely,
(a)the formation of a belief by the Authority, on reasonable grounds, that a person has committed, without the Authority’s permission, any of the acts set out in paragraphs (a) to (g) of reg 298A(1);
(b)the giving to the person of a notice setting out the act or acts believed to have been committed and the grounds for the belief;
(c)a period of 14 days being allowed for the person to make representations to the Authority;
(d)the Authority being satisfied, taking into account any representations by the person, that the person committed the act mentioned in the notice; and
(e)notification to the person of the Authority’s decision.
A decision by the Authority that it is satisfied that the person has committed an act mentioned in reg 298A(1) is capable of being reviewed by the Tribunal.[3] A decision, once made, has the effect set out in reg 298A(5); that is, the person is taken not to have passed the examination and may not sit any prescribed examinations for a period of one year from the original examination.
[3] Reg 297A, item 34.
Additionally, it is relevant to note that the Authority may, pursuant to reg 269(1) of the Civil Aviation Regulations vary, suspend or cancel an approval, authority, certificate or licence, if it is satisfied that one or more of the following grounds exist:
(a) that the holder of the authorisation has contravened, a provision of the Act or these Regulations, including these regulations as in force by virtue of a law of a State;
(b) that the holder of the authorisation fails to satisfy, or to continue to satisfy, any requirement prescribed by, or specified under, these Regulations in relation to the obtaining or holding of such an authorisation;
(c) that the holder of the authorisation has failed in his or her duty with respect to any matter affecting the safe navigation or operation of an aircraft;
(d) that the holder of the authorisation is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such an authorisation;
(e) that the holder of the authorisation has contravened, a direction or instruction with respect to a matter affecting the safe navigation and operation of an aircraft, being a direction or instruction that is contained in Civil Aviation Orders.
Consideration – the reg 298A conduct
In my earlier decision I concluded that it was not open to make a finding of a contravention of reg 298A(1)(c). I reached that conclusion on the basis of a construction of the regulation that has been held to be erroneous. On the appeal from the earlier decision Collier J said:[4]
[37]Subregulation 298A(1)(c)(iii) is expressed in terms both retrospective and prospective. It applies to a person who has previously attempted the examination, and who has given information to another person, where that information, in future, might give anyone an unfair advantage in the examination. This reading of the plain language of the subregulation is inconsistent with the interpretation accorded to it by the Tribunal. It is certainly inconsistent with the finding of the Tribunal that the information given by Mr Marsh in July 2012 could not “give an unfair advantage” to a candidate at that time because “the examination” was that sat by Mr Marsh in October 2011. The interpretation of the Tribunal is flawed, because subreg (iii) primarily envisages the relevant information being given after the sitting of the examination by the giver of the information.
…
[43]All of these factors support the conclusion that “the examination” in reg 298A(1)(c)(iii) is not the examination sitting attempted by the candidate who has given the information, but rather is a generic examination more broadly defined. In this case “the examination” for the purposes of reg 298A(1)(c)(iii) was “the ATPL flight theory examination”, and not only the October 2011 sitting of the ATPL flight theory examination attempted by Mr Marsh. Such an interpretation not only gives effect to reg 298A(1)(c)(iii) with respect to unfair advantages gained in future sittings, it is also consistent with the reality of the generic examinations prescribed by CASA which can be attempted online on more than one occasion and use a finite database of questions.
[4][2014] FCA 1253.
Informed by that construction, and by the findings of fact earlier made, it seems impossible to conclude otherwise than that Mr Marsh breached reg 298A(1). Indeed the Authority’s written submissions suggest that,
… in light of the court’s judgment, the only course open to the Tribunal in relation to the CAR 298 conduct is to affirm CASA’s decision with respect to it.[5]
[5] Respondent’s submissions, paragraph [6].
Mr Marsh however advances a new argument, one not advanced in the early hearing or on the appeal, about the proper construction of reg 298A(1)(c)(iii). The argument put is that the information passed on by Mr Marsh was not shown to have been information obtained by his attendance at the examination. There was, it is said, no, or no sufficient, evidence to establish that the information passed on by Mr Marsh was obtained by his attendance at the examination.[6]
[6]Applicant’s submissions, paragraph [14].
I am unable to agree. The argument is answered precisely by paragraph [43] of the judgment of Collier J set out in paragraph [8] above – “the examination” in reg 298A(1)(c)(iii) is not the ATPL examination undertaken by Mr Marsh in October 2011, the term is used in a generic sense. The document undoubtedly passed on by Mr Marsh to N in July 2012 contained information about some, at least, of the questions contained in the bank of 105 questions used by the Authority as the basis of the ATPL examination. I remain of the view I earlier expressed that the language of reg 298A(1)(c)(iii) makes it clear that the potential beneficiary class is a wider class (anyone) than the recipient class (another person).[7]
[7] Re Marsh & Civil Aviation Safety Authority [2013] AATA 729 at [28].
That being so, the fact of Mr Marsh having passed on the document to another person and the nature of the document establishes the breach of reg 298A(1)(c)(iii). It follows that the Authority’s decision of 8 August 2013, made in reliance on reg 298A(4) of the Civil Aviation Regulations must be affirmed.
The submissions on behalf of Mr Marsh raised matters that suggest that one of the consequences of the construction that has been adopted is that Mr Marsh will now be required to re-sit a number of examinations, not just that which was the subject of these proceedings. The result, it is said, will be a direct negative impact on Mr Marsh’s current employment and his ability to obtain employment in the short or long term. It is said that it could not be the purpose or intention of the legislation that such consequences attend a reg 298A(4) finding.[8] Whether that was the purpose or the intent, and assuming that the matters complained of had been the subject of evidence, the construction of the regulation has been authoritatively determined by a decision of the Court. I am bound to give effect to that construction.
[8] Applicant’s submissions, paragraphs [23] - [28].
In those circumstances I do not find it necessary to deal with the Authority’s alternative argument that the conclusion of the Court that Mr Marsh had contravened reg 298A(1)(e) provided an independent basis upon which the Tribunal was now required to affirm the reg 298A(4) decision.[9] That is not to say that the underlying conduct is not relevant to a consideration of the second decision, that to suspend Mr Marsh’s licences for a period of six months. I had regard to that conduct in my earlier decision[10] and will do so again in re-considering the matter.
[9] Respondent’s submissions, paragraph [24].
[10][2013] AATA 729 at [35].
Consideration – a fit and proper person
The submissions of the Authority noted an apparent tension between the reasons for judgment of Collier J and the order actually made. It will be recalled that the subject matter of the proceedings in the Tribunal was two decisions made by the Authority on 8 August 2013. My decision of 10 October 2013 set aside each of those decisions. The Authority appealed that decision and, as the reasons for judgment explain, grounds 1 to 4 of its notice of appeal related to the interpretation of reg 298A(1) and grounds 5 to 7 related to the issue of whether Mr Marsh was a fit and proper person.[11] Whilst her Honour was satisfied that the grounds relating to reg 298A(1) were made out she held that grounds 5, 6 and 7 were “not substantiated”.[12] Her Honour then continued,
In my view the learned Tribunal member adopted an incorrect approach in his interpretation of reg 298A(1)(c)(iii). Further, the Tribunal ought to have made the findings identified by the applicant in grounds 2, 3 and 4 of the notice of appeal. Although the Tribunal made a finding on the facts that Mr Marsh was a fit and proper person within the meaning of reg 269(1)(d), I consider it necessary that this decision be revisited in light of this judgment. As the underlying facts were fully explored by the Tribunal it may be that the decision of the Tribunal remains the same concerning Mr Marsh’s fitness and propriety, however that is an issue for the Tribunal. The appropriate order is to remit the matter to the Tribunal for determination according to law.[13]
[11] [2014] FCA 1253 at [25].
[12]At [59].
[13] At [60].
Given her Honour’s reasoning I would have thought, with respect, that the order required to give effect to that reasoning would be one setting aside both aspects of my decision of 10 October 2013 – that relating to the reg 298A(1) finding and that relating to the suspension of Mr Marsh’s licences. But the order actually made was in these terms:
The decision of the Administrative Appeals Tribunal (“Tribunal”) to set aside the reviewable decision made under regulation 298A(4) of the Civil Aviation Regulations 1988 (Cth) be set aside and remitted to the Tribunal for rehearing in accordance with the law.
The Authority submits that,
… the only sensible construction of the court’s reasons in this regard, is that the entirety of the matter previously considered by the Tribunal (including the CAR 269(1) issue) is to be remitted for re-determination and that, consequently, it is necessary for the Tribunal to make a new decision under CAR 269(1) taking into account the correct findings with respect to the CAR 298 conduct.[14]
That seems to me to be correct, however, it does not come to grips with the terms of the order. Strictly speaking, that part of my decision that dealt with the Authority’s decision to suspend Mr Marsh’s licences has not been set aside. That seems to have the necessary consequence that the matter is not before me. Nonetheless, Mr Marsh does not raise any jurisdictional impediment to my hearing the matter. The practical solution seems then to treat the order of the Court as having the effect that both parties appear to accept was intended, leaving it for the Authority to have the order corrected under the slip rule so that the order correctly reflects that which her Honour intended. It has an obligation to the Tribunal (and to the Court) to do so and I expect that it would do so promptly.
[14] Respondent’s submissions, paragraph [8].
In paragraphs [31] - [33] of my earlier decision I set out my understanding of the concept of “fit and proper person” in the present context. I said:
[31]It remains to consider whether, by reference to Mr Marsh’s conduct, I am satisfied that he is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of the licences held by him and suspended by the decision under review.
[32]It is not possible to attempt to define the matters that may be legitimately enquired into; each case must depend upon its own circumstances[15]. In Australian Broadcasting Tribunal v Bond[16] Mason CJ said of the expression “fit and proper person”, when used in a similar setting in the Broadcasting Act 1942 (Cth)
[15] See Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127, 156-7.
[16](1990) 170 CLR 321, 349 at [66].
A licensee which is a fit and proper person in the context of s.88(2)(b)(i)[of the Broadcasting Act]must have an appreciation of those responsibilities and must discharge them. Conversely, a licensee which lacks a proper appreciation of those responsibilities or does not discharge them is not, or may be adjudged not to be, a fit and proper person.
The holder of a pilot’s licence must have an appreciation of the responsibilities of that office and discharge them. In Re Taylor and Department of Transport[17] the Tribunal was considering reg 258 of the Air Navigation Regulations, the statutory precursor to reg 269 of the Civil Aviation Regulations and relevantly identical to it. The Tribunal said[18],
In the context of reg 258(1)(d), the enquiry whether the applicant is a ‘fit and proper person’ is directly focused upon the fitness and the propriety of the applicant exercising the ‘responsibilities’ and performing the ‘functions’ and ‘duties’ of the holder of a licence – in this case a commercial pilot licence. It is not simply a question of competence to fly an aircraft which the Secretary must consider for this purpose.
In our view, what the regulation requires is a consideration of the applicant’s conduct measured against the responsibilities, functions and duties of the holder of a commercial pilot licence as they emerge from the provisions of the Air Navigation Regulations. Whilst it would be inappropriate to endeavour to catalogue those responsibilities, functions and duties in any exhaustive fashion, it is clear that they include observing the interests of the safety of air navigation – not only the interests of pilots, passengers and the owners of aircraft, but also the interests of the public at large.
[33]As that passage makes clear, the notion of fitness and propriety involves much more than mere competence. Personal integrity, as well as the need for a regulator to be able to have confidence in a licensee’s integrity, forms part of the consideration. Here it has been shown that Mr Marsh forwarded to another a document plainly designed to aid cheating in a critical examination for the most significant individual licence available. It seems to me not to matter that N was unable to benefit from the four pages, the point is that it was obviously an aid to cheating.
[17](1978) 1 ALD 312.
[18]At 321.
The Authority’s submissions on this aspect of the case reminded me of what had been said by the Tribunal in Re Taylor & Department of Transport[19] and that, by virtue of
s 9A(1) of the Civil Aviation Act 1988 (Cth), the Tribunal, in the place of the Authority, was bound to regard the safety of air navigation as the most important consideration.[20] The Authority emphasised that Mr Marsh had engaged in conduct proscribed by reg 298A(1)(c)(iii) and (e) by giving N information about the questions contained in the ATPL examination paper and that, “before or during the ATPL examination”, he had knowingly received, or knowingly obtained possession of, information about the content of the model answer, i.e. “a document which sets out the correct, or suggested, answers to the questions set out in the examination”.[21] The first proposition is undoubtedly correct but the second needs an important qualification. To suggest that Mr Marsh had received or obtained possession of the information “during the ATPL examination” appears not to have ever been part of the Authority’s case. If it is an inelegant way of suggesting that Mr Marsh had possession of the material during the examination, it is contrary to my express rejection of the Authority’s case in the earlier hearing that Mr Marsh had used the material during the examination.[19](1978) 1 ALD 312, 321.
[20]The submissions cite Sullivan v Civil Aviation Safety Authority [2013] FCA 1367 at [15] as authority for the proposition. I suspect it is intended to be a reference to Anderson v Civil Aviation Safety Authority [2013] FCA 1367. In any event the principle is not open to doubt.
[21]Reg 298A(8).
Nonetheless it is undoubtedly the case, as I recorded at paragraph [23] of my earlier reasons, that Mr Marsh had obtained possession of the document at some point prior to 12 October 2011. To that extent, I accept, he engaged in conduct proscribed by reg 298A(1)(e) of the Civil Aviation Regulations.
The submissions emphasized, as well, the seriousness of cheating in aviation examinations and of assisting others to do so and that cheating, or assisting others, compromises the safety of air navigation. I accept that may well be the consequence if, as a result of that cheating, a candidate who has not honestly demonstrated competence is granted a licence, but the submission is put at a high level of abstraction. It will be necessary to consider the present factual context.
Finally, the Authority submits that a licence holder who does not understand, and does not see, that cheating is a threat to a licensing system designed to achieve and protect the safety of air navigation, does not properly understand, and does not discharge, the responsibilities, functions and duties of the holder of a commercial pilot’s licence as those matters emerge from the provisions of the Civil Aviation Regulations.
The submissions for Mr Marsh set out in considerable detail his career in aviation following the original hearing. As the Authority points out, those matters have not been the subject of evidence. As the parties agreed to proceed on the basis of the evidence at the original hearing, supplemented by written submissions, I consider that I am not able to have regard to the matters set out in Mr Marsh’s submissions beyond inferring, from the absence of any suggestion to the contrary from the Authority, that Mr Marsh has not come adversely to the notice of the Authority since the last hearing.
The submissions otherwise stress the absence of any serious or imminent breach of air safety by Mr Marsh, and the time that has elapsed since his transgressions. Given that the Authority does not suggest any serious or imminent breach of air safety, the first submission rather misses the point. But I regard it as a lawyer’s flourish rather than a demonstration of a continuing lack of insight on the part of Mr Marsh.[22]
[22]See the Authority’s submissions at [31].
I said in my earlier decision that I had been favourably impressed by Mr Marsh and concluded he had a proper understanding of the need for integrity in his dealings with the Authority and, more generally, in his aviation career. Having referred to evidence that suggested that model answers to frequently repeated questions were freely circulating amongst candidates, I said of his conduct:
Mr Marsh participated in this system. He did not himself cheat (using the word in its popular sense). At worst he may, by his actions, have assisted others to do so and gained some potential benefit from receiving the four pages. That benefit could only have been slight given that the four pages contain far more suggested answers than were contained in the examination that Mr Marsh took. His minor role in a widespread system does not satisfy me that he is not a fit and proper person when I have an otherwise favourable impression of him.[23]
I accept that conduct amounted to a contravention of reg 298A(1)(c)(iii) and 298A(1)(e) (as I have sought to explain in paragraphs [19] and [20] above). As I earlier said, there are two critical aspects of Mr Marsh’s conduct – receiving the document, with the potential to benefit from it, and passing it on to another where others might benefit from it. But I rejected the case of actual cheating and remain of that view. In the context of what was obviously a widespread practice Mr Marsh played a minor role. He was wrong to do so but his transgressions at that time do not lead me to conclude that he is not a fit and proper person. I do not doubt that Mr Marsh has learned significant lessons from this experience and that the Authority can have confidence in his integrity. I do not doubt that he appreciates, probably more than most, the need for absolute honesty in his dealings with the Authority.
[23] At paragraph [35]
As I am not satisfied that Mr Marsh is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a commercial pilot I would set aside that decision of the Authority.
I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC ...........................[Sgd].............................................
Associate
Dated 8 May 2015
Date of hearing Heard on the papers Date final submissions received 16 March 2015 Solicitors for the Applicant HWL Ebsworth Counsel for the Respondent Mr R S Ashton Solicitors for the Respondent CASA Legal Services Division
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5
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